DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
BENJAMIN DEWITT FRYE,
Appellant,
v.
CHRISTINA MARIE CUOMO,
Appellee.
No. 4D19-1417
[June 3, 2020]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Arthur M. Birken, Senior Judge; L.T. Case No.
FMCE 17-008378.
Meaghan K. Marro of Marrow Law, P.A., Plantation, and Dana R.
Swickle of Swickle & Associates, PLLC, Fort Lauderdale, for appellant.
Terrence P. O’Connor of Morgan, Carratt & O’Connor, P.A.,
Fort Lauderdale, for appellee.
DAMOORGIAN, J.
Benjamin Dewitt Frye (“Former Husband”) appeals the trial court’s final
judgment dissolving his marriage to Christina Marie Cuomo (“Former
Wife”). Although Former Husband raises numerous issues on appeal, we
find merit in only three of his arguments, namely that the trial court erred
in: (1) giving Former Wife unfettered discretion to request blood alcohol
content (“BAC”) testing from Former Husband; (2) failing to calculate the
cost of the BAC device as part of the child support obligations; and
(3) granting Former Wife ultimate decision-making authority regarding the
children’s education.
Following a nine-year marriage which produced two children, Former
Wife petitioned to dissolve her marriage to Former Husband. Citing
Former Husband’s alcohol problem, Former Wife requested the court
award her majority time-sharing, with supervised visits only for Former
Husband, and ultimate decision-making authority. Former Husband filed
a counterpetition and requested unsupervised time-sharing and shared
decision-making authority.
After Former Wife filed her petition, the parties entered into a temporary
agreement allowing Former Husband to have unsupervised time-sharing
with the children during the pendency of the dissolution action.
The unsupervised time-sharing was conditioned upon Former Husband
agreeing to: (1) submit to a substance abuse evaluation; (2) abstain from
purchasing and consuming alcohol both during his time-sharing with the
children and within six hours of any scheduled time-sharing visit; and
(3) blow into a BAC breath testing device at the beginning and end of each
time-sharing visit.
At trial, the court heard extensive testimony regarding Former
Husband’s lengthy history of alcohol abuse, including testimony from the
psychologist who performed the substance abuse evaluation. In relevant
part, the psychologist testified that Former Husband should completely
abstain from alcohol use given his dependence on alcohol and history of
relapse. The court also heard testimony from the guardian ad litem
appointed for the children who provided insight as to Former Husband’s
involvement with the children. The guardian ad litem testified that,
despite his history of alcohol abuse, Former Husband was very involved in
the children’s education and school activities and regularly volunteered at
the school.
In its written final judgment of dissolution of marriage, the trial court
awarded Former Husband unsupervised time-sharing with the children
with the condition that Former Husband abstain completely from all
alcohol use at all times and submit to BAC testing both at the beginning
and end of each time-sharing visit. The trial court also gave Former Wife
the authority to reasonably demand periodic and immediate BAC tests
from Former Husband, even when not exercising time-sharing, and
ordered Former Husband to pay the entire cost of the BAC device. The
court also awarded Former Wife ultimate decision-making authority
regarding the children’s education. This appeal follows.
“A trial court’s timesharing and parenting plan determination is
reviewed for an abuse of discretion.” Krift v. Obenour,
152 So. 3d 645, 647
(Fla. 4th DCA 2014).
We first address Former Husband’s argument that the trial court
abused its discretion in restricting his time-sharing. It is well established
that “[r]estriction of visitation is generally disfavored, unless the restriction
is necessary to protect the welfare of the child.” Culbertson v. Culbertson,
90 So. 3d 355, 356 (Fla. 4th DCA 2012).
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The supreme court has recognized that a parent has a
constitutionally protected inherent right to a meaningful
relationship with his [or her] children. Thus, time-sharing
privileges should not be denied to either parent as long as the
parent conducts himself or herself, while in the presence of
the children, in a manner which will not adversely affect the
children. Because of the constitutional right to a meaningful
parent-child relationship, there must be competent,
substantial evidence in the record that demonstrates that any
restrictions or limitations on time-sharing are in the best
interests of the child before those restrictions will be
sustained.
Perez v. Fay,
160 So. 3d 459, 465 (Fla. 2d DCA 2015) (alteration in original)
(internal citations and quotation marks omitted); see also § 61.13(3)(a)–(t),
Fla. Stat. (2018).
Here, given Former Husband’s demonstrated history of alcohol abuse
and relapse, it was well within the trial court’s discretion to restrict Former
Husband’s time-sharing by requiring him to abstain completely from
alcohol use and submit to BAC testing both at the beginning and end of
each visit. See Stephens v. State,
748 So. 2d 1028, 1034 (Fla. 1999) (“We
recognize and honor the trial court’s superior vantage point in assessing
the credibility of witnesses and in making findings of fact.”). It was error,
however, for the trial court to grant Former Wife unfettered discretion in
requesting BAC testing from Former Husband at any time as this
restriction was neither within the parameters of reasonableness nor
necessary to protect the welfare of the children. See Canakaris v.
Canakaris,
382 So. 2d 1197, 1204 (Fla. 1980);
Culbertson, 90 So. 3d at
356. On remand, the trial court shall remove the language from the final
judgment granting Former Wife unfettered discretion in requesting BAC
testing from Former Husband and leave intact the language requiring
Former Husband to submit to BAC testing at the beginning and end of
each time-sharing visit.
Moreover, because the final judgment explicitly conditions Former
Husband’s time-sharing on BAC testing, it was also error for the trial court
to make him solely responsible for the cost of the BAC device. See Moore
v. Yahr,
192 So. 3d 544, 545–46 (Fla. 4th DCA 2016) (holding that the
costs associated with restrictions on time-sharing are to be part of the
child support obligations, and reversing the portion of the final judgment
making the father solely responsible for time-sharing costs); accord
Perez,
160 So. 3d at 466. On remand, the trial court shall treat the cost of the
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BAC device as part of the child support obligations. See Moore,
192 So.
3d at 545;
Perez, 160 So. 3d at 466.
Turning to Former Husband’s argument that the trial court erred in
awarding ultimate decision-making authority to Former Wife regarding the
children’s education, section 61.13(2)(c)2.a., Florida Statutes (2018),
provides that “[i]n ordering shared parental responsibility, the court may
. . . grant to one party the ultimate responsibility over specific aspects of
the child’s welfare or may divide those responsibilities between the parties
based on the best interests of the child.” Education is one such aspect.
§ 61.13(2)(c)2.a., Fla. Stat. Here, the record does not support the trial
court’s finding that it is in the best interests of the children to give Former
Wife ultimate decision-making authority regarding education. To the
contrary, the record reflects that Former Husband is actively involved in
the children’s education and school activities. On remand, if necessary,
the trial court may take additional evidence.
Affirmed in part and reversed and remanded in part.
MAY and CONNER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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